Local lawyer vows to appeal after losing First Amendment
suit
Morgan Hill – Santa Clara County Superior Court Judge William J. Elfying has concluded the city of Morgan Hill didn’t do anything wrong when it publicly denounced attorney Bruce Tichinin for hiring a private investigator to shadow City Manager Ed Tewes in a failed attempt to prove a scandalous affair with former City Attorney Helene Leichter. Tichinin claimed the alleged affair had hurt his client’s chances of building new homes in the city.
The local attorney sued the city in 2005 claiming the Morgan Hill City Council violated his constitutional rights when it publicly condemned him in July 2004 for surveillance of Tewes. The lawsuit claimed the city unlawfully interfered in Tichinin’s legal affairs. Tichinin said he hired a private investigator to follow Tewes to prove an alleged intimate affair with former Leichter that, had it been true, may have affected the outcome of pending litigation for one of Tichinin’s clients, developer Howard Vierra.
The question before the court was whether the city’s constitutional right to free speech was protected. Elfying agreed it was, finding there was no legitimate connection between Tichinin’s surveillance activities and his casework. For one thing, Vierra never asked for the surveillance.
“I am disappointed, but undaunted,” Tichinin said after the ruling, vowing to appeal. “I have often sued the city for clients over the last 30 years. I have won the majority of those cases, but usually on appeal.”
In a statement issued Wednesday, city officials said they were ready to “move on” after what’s been a local soap opera of alleged affairs, espionage and public rebukes.
“Hopefully, this will finally end a long and painful episode in this city’s history,” the statement said. All citizens, city employees and those doing business in Morgan Hill should “not be pressured to take actions based on unfounded or misguided allegations,” it went on to say.
As part of the fallout from the tangled case, Leichter gave her resignation in 2005 after the city agreed to pay her $230,000 in a settlement in which the city denied liability or “wrongful acts” against Leichter.
Both Tewes and Leichter are married, have children and have claimed to have suffered personally from the rumored scandal.
Tichinin’s lawsuit stems from a land-use tussle three years ago. Tichinin was representing Vierra, a landowner who wanted to build more homes but couldn’t because the city denied him permits.
A legal challenge to the city’s decision followed, unsuccessfully. At the same time, rumors swirled of an intimate affair between Tewes and Leichter that Tichinin said may have compromised his business with the city. He hired a private investigator to follow Tewes.
Jarred by news of a private investigator trailing Tewes to Southern California, the city council launched an investigation into the matter and later aired its disappointment over Tichinin’s actions.
Arguing the city was out of line, Tichinin raised the point that in court-ordered depositions, Mayor Dennis Kennedy, and city councilmembers Steve Tate, Larry Carr and Greg Sellers all admitted they had no information that Tichinin had committed any “legal wrongs” even though they had refused his demand to admit that publicly.
An attorney for the city said denouncing embarrassing rumors of a scandalous affair – which had been emphatically denied by Tewes, Leichter and their colleagues – led to the council’s rebukes of Tichinin.
“It really was not important to the city council whether or not a crime had actually been committed,” said attorney Tim Schmal. “What the city’s investigation determined was that Tichinin was out of bounds and over the line in his behavior.”
Tony Burchyns covers Morgan Hill for The Times. Reach him at (408) 779-4106 ext. 201 or tb*******@*************es.com.
